33 responses to “Commentary On Presidential (De)Classification Powers”

1. 

   DK

   August 17, 2022 at 10:15 am

   Ha. “Some of our commenters” with (alleged) direct experience very loudly insisted presidential declassification is unlimited. And arrogantly refused to concede to us mere, unwashed plebes who said, no, there are procedural and statutory limits on this supposed plenary power.

   Glad the media commentariat is catching up.

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2. 

   gVOR08

   August 17, 2022 at 10:47 am

   @DK: I think it’s a difference between de facto and de jure. No, the president can’t legally declassify anything he feels like. In fact, if, as prez, he said “I declassify this”, which flunky was going to tell him no? They’d just nod politely, pick it up after he lost interest, and hopefully put it back where it was supposed to be. He hasn’t adjusted to the fact he isn’t prez anymore and we no longer have to put up with his shit.

   Yesterday Balloon Juice quoted one Paul Sperry,

   Sources close to Trump say the former president was reluctant to furnish presidential records to the National Archives after he found out partisan Democrat political appointees there were releasing thousands of his White House documents to the January 6 Committee in spite of his lawyers claims of executive privilege. They say the former president simply “does not trust” the Obama and Biden political appointees running the National Archives to act in good-faith and in bipartisan spirit.

   Neil Katyal had forwarded this, noting that it’s a confession.

   I have a theory for you. Totally unsubstantiated, but why hold me to higher standards than prominent national pundits? The above quotes Trump tying this to the 1/6 committee. What’s the missing link for the committee? A direct tie between Trumpsky and the cammo boys. The classified documents are a rationale for the warrant and a red herring. What Trump was really hiding is unclassified documents telling Rudy or Flynn or whoever to bring in the Proud Boy types.

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3. 

   Matt Bernius

   August 17, 2022 at 11:46 am

   @DK:

   “Some of our commenters” with (alleged) direct experience very loudly insisted presidential declassification is unlimited.

   I’m assuming you’re referring to Andy. While I don’t know his exact biographical data, he has talked about his previous government experience with this topic for years before this specific case came up. At this point, I have no reason to doubt what he has shared or that he has an informed opinion about the topic. And many of the things Andy’s pointed out in past are also born out in more detailed reporting.

   Also informed opinions are still, to some degree, opinions. They are often tied to specific contexts, sets of experiences/knowledge, and individual biases. So, they shouldn’t be taken as “facts” but I think it’s worth trying harder to understand the underlying logic as to why those opinions are the way they are–if for no other reason, the Dunning-Kruger effect is a thing (and we non-experts often flatten things to a degree that doesn’t actually represent the complex reality of these things).

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4. 

   Pylon

   August 17, 2022 at 11:54 am

   The first point (about classification being irrelevant) is notable. So many Trump defenders have pinned their argument on his power to declassify that they ignore the big picture. They are defending Trump absconding with state secrets (and doing God knows what with them). Just because he can (according to them).

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5. 

   Jen

   August 17, 2022 at 12:11 pm

   @Matt Bernius:

   They are often tied to specific contexts, sets of experiences/knowledge, and individual biases.

   This is indeed an important thing to keep in mind.

   I’d also add that the collective “we” here don’t always know the details of many of the regulars’ backgrounds, and some might have more experience and understanding on certain topics than they let on or are comfortable sharing.
6. 

   Scott

   August 17, 2022 at 12:16 pm

   Can we get even more basic than whether any documents were classified, or Controlled Unclassified, or any other handling procedure? They were government property. National Archives said to send them back. They sent some but not all. And lied about it. At that point, Trump is in possession of stolen government material. He is a thief.

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7. 

   Andy

   August 17, 2022 at 12:26 pm

   Matt,

   Nice post. I have a busy workday, so will have more to write later. I do agree with your point that this is mostly academic because the warrant did not cite or rely on the laws regarding classified material. But I also think it’s interesting to consider why it wasn’t included.

   @DK:

   On the contrary, I’ve acknowledged in comments here that there are exceptions that are governed by statute and not the President’s authority. Those exceptions are rare and are probably not relevant to the documents Trump took, although we will find out soon enough.

   As for my experience, I do not feel any obligation to prove anything to you, especially considering that you continuously operate in bad faith when responding to my comments, including ad hominem, impugning my integrity, etc. When people do that, it just proves to me they have nothing to say about the merits of my arguments. Regardless, feel free to ignore my claimed experience (I would actually recommend that) and assume that is as extensive as yours. That would require you, however, to focus on the merits of my actual arguments and dispute them with actual evidence and logic instead of name-calling.

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8. 

   drj

   August 17, 2022 at 1:26 pm

   @Andy:

   Those exceptions are rare and are probably not relevant to the documents Trump took, although we will find out soon enough.

   You’re completely missing the point.

   Yes, the POTUS has (with limited exceptions) broad authority to decide to declassify documents. Nobody is disputing that.

   The point is that in order for something to be actually declassified there has to be actual follow-up. It’s in the OP. In bold even.

   In the case of the Trump documents, there was no such follow-up. Nor is it likely that Trump even intended that there would be any kind of follow-up.

   This means that the documents Trump claimed were declassified were not declassified at all.

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9. 

   Modulo Myself

   August 17, 2022 at 2:06 pm

   And if it stands that a “blanket order” is enough to declassify, it would imply that the inverse is true: a blanket order is enough to classify information as well. That means that Biden could claim that he put a standing “blanket order” in place to reclassify all information Trump declassified pending review.

   They carted away info from Mar A Lago before the raid that everyone agreed was classified. The blanket order existed and also didn’t exist in certain cases, I guess. Not that this will in any way sway his defenders. The President’s powers are so absolute they defy any sort of causality or retroactive reclassification by a future President.
10. 

    Matt Bernius

    August 17, 2022 at 2:28 pm

    @Andy:

    I do agree with your point that this is mostly academic because the warrant did not cite or rely on the laws regarding classified material. But I also think it’s interesting to consider why it wasn’t included.

    One possible explanation is that the DoJ was unsure as to what documents were being held and, knowing that the warrant would be released, focused on the most defensible/prosecutable statutes based on the facts they had.

    That, BTW, is a good thing (at least in my opinion). Should this ever go forward, it’s entirely possible that additional charges could be added if they think the evidence is there at the time of charging.

    I’ve acknowledged in comments here that there are exceptions that are governed by statute and not the President’s authority. Those exceptions are rare and are probably not relevant to the documents Trump took, although we will find out soon enough.

    Andy, WRT “President’s authority” is your opinion that there are no clear exceptions because there has never been a court decision or other statute that defines those exceptions?

    Also, I took some time to read through the 2nd Circut’s Decision in support of President Trump in the case with the New York Times and it notes that (at least at the time) even the President had to follow Executive order 13,526 which “established the detailed process through which secret information can be appropriately declassified.” I don’t believe that EO has been superseded by a new order.

    The EO is here: https://obamawhitehouse.archives.gov/the-press-office/executive-order-classified-national-security-information

    As I read the core of the core test that the court is applying it is:
    To prevail in any claim of declassification, inferred or otherwise, the Times’s must show: first, that President Trump’s statements are sufficiently specific; and second, that such statements subsequently triggered actual declassification.

    That suggests that procedure is critical to the process. Or am I missing part of the argument?

    @drj:

    In the case of the Trump documents, there was no such follow-up. Nor is it likely that Trump even intended that there would be any kind of follow-up.

    This means that the documents Trump claimed were declassified were not declassified at all.

    This is going to sound picky but we are currently unsure as to any status of follow-up on these documents. Nor do we necessarily even know what the documents were. Those are both things that will come out (eventually) in time.

    Like you I share the view that given this administration’s track record, follow-up was unlikely. But we shouldn’t fall into the trap of treating conjecture as fact.

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11. 

    dazedandconfused

    August 17, 2022 at 2:52 pm

    The bottom line is whether or not Trump will be indicted for this.

    Due to the vaguarities, the special status of a POTUS, the lack of a historical need to child-proof the office (resulting in said legal vaguarities) and Trump being a billionaire capable of appealing this all the way to the Supreme Court, it would be surprising of the DOJ were to devote the necessary resources. It would be a project covering the best part of a decade and the DOJs resources are limited.

    IMO the goal was just to get the docs back, and the cited laws in the search warrant were required to obtain it. Fighting the release of the affidavit could reflect a desire to end the discussion just as much as it could reflect the stated rational, to preserve a criminal case. The DOJ is getting pelted with inquiries and every detail released creates more. They have other, and bigger, fish to fry.

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12. 

    drj

    August 17, 2022 at 3:16 pm

    @Matt Bernius:

    This is going to sound picky but we are currently unsure as to any status of follow-up on these documents.

    If there had been follow-up it would have been documented (there are prescribed administrative processes for this) and the DOJ would have had no case.

    I’m pretty sure Garland and his lawyers aren’t THAT stupid.

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13. 

    a country lawyer

    August 17, 2022 at 3:18 pm

    Matt, Having read your thoughtful article and the articles mentioned in it I can’t disagree with the conclusions, but I have some troubles with how the authors arrived there. Specifically, I question the proposition that the President’s powers to classify information comes from his authority as commander and chief of the Army and Navy. National security law is not my area of expertise so perhaps others here can better explain it. Surely, the commander in chief has the constitutional authority to regulate the disbursement of information within the military. and while Clausewitz tells us that war and diplomacy are merely a continuum, not all classified information is military. Unlike the President’s power to pardon, which is expressly stated in the Constitution, the specific power to classify information is not. As that noted jurist Strip Search Sammy Alito might have said “the word top secret ain’t in the Constitution”. It seems to me-and the lawyers in this group more knowledgeable than me might clarify this- that if there is any constitutional authority to designate any information as being prohibited from being disclosed its citizens, that authority must reside in Article I, the Congress. If that’s so any authority the President has in that area, apart from his authority over the military must be by grant from the Congress.
    In the article it is argued that, in the course of his duties in dealing with foreign leaders, and in the interest of national security he may reveal classified information. That may well be true, but the act of revealing classified information doesn’t by itself constitute declassification. The information remains classified until the proper procedures are followed; furthermore, even declassified information can be reclassified.

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14. 

    Matt Bernius

    August 17, 2022 at 3:36 pm

    @dazedandconfused:

    IMO the goal was just to get the docs back, and the cited laws in the search warrant were required to obtain it.

    FWIW, if that is the case, then that’s an improper use of a search warrant (and there are other ways to use the courts to recover those documents). I simply do not believe this justice department would do that. Additionally, they took more than just the controlled documents.

    @drj:

    If there had been follow-up it would have been documented (there are prescribed administrative processes for this) and the DOJ would have had no case.

    Again, the warrant was not specifically focused on the recovery of classified documents. And to that point, they removed more from the premises than just documents that were flagged with some level of secrecy.

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15. 

    Jen

    August 17, 2022 at 3:44 pm

    @Matt Bernius:

    This is going to sound picky but we are currently unsure as to any status of follow-up on these documents. Nor do we necessarily even know what the documents were.

    Unfortunately, as with so many things involving Trump, we’re left to follow a Möbius loop of conjecture. We know that there were documents with classification markings. We also know that actual declassification, or even reclassification, would include revised markings on those documents. So, while all we’re left with is inference, it’s logic to infer that if there were documents that still carried top secret and other classified markings, they weren’t fully (or actually) declassified.

    Which is exactly why there’s a process. You don’t want people guessing at this stuff.

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16. 

    Gustopher

    August 17, 2022 at 3:52 pm

    John Solomon wrote/said/shrieked-in-Morse-code:

    President Trump, in order to prepare the work for the next day, often took documents, including classified documents, to the residence. He had a standing order … that documents removed from the Oval Office and taken to the residence were deemed to be declassified the moment he removed them.

    Is there a copy of this standing order anywhere?

    And, is it the claim of the former Trump administration that anything and everything that was taken to the private residence could then have been leaked to the NYTimes and put on their front page, with no laws being broken?

    That seems like a rather bold statement.

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17. 

    Jon

    August 17, 2022 at 3:52 pm

    @Matt Bernius:

    Again, the warrant was not specifically focused on the recovery of classified documents.

    From Attachment B of the warrant:

    a. Any physical documents with classification markings, along with any containers/boxes (including any other contents) in which such documents are located, as well as any other containers/boxes that are collectively stored or found together with the aforementioned documents and containers/boxes;

    So it sounds like it actually kinda was at least partially about recovery of classified documents? Of course this is maybe the first warrant I’ve ever actually read through, so I very well could be misunderstanding.

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18. 

    Matt Bernius

    August 17, 2022 at 4:04 pm

    @Jon:
    Great catch, you are right. That was poorly worded on my part (I was drafting too quickly)O. I should have said *only* and not *specifically.*

    You are entirely correct about what was in “a.” I was thinking of b through d (though “b” also makes reference to classified docs) in that list.

    b. Information, including communications in any form, regarding the retrieval, storage, or transmission of national defense information or classified material;

    c. Any government and/or Presidential Records created between January 20.2017, and January 20, 2021; or

    d. Any evidence ofthe knowing alteration, destruction, or concealment of any government and/or Presidential Records, or of any documents with classification markings
19. 

    Jen

    August 17, 2022 at 4:09 pm

    @Gustopher:

    Is there a copy of this standing order anywhere?

    John Bolton says no, and further that it would be preposterous.

    This was Trump’s way of getting around the rules. The rules said he couldn’t cart around classified information, so he just made up a rule that got him what he wanted.

    He was the Calvinball president.

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20. 

    dazedandconfused

    August 17, 2022 at 6:04 pm

    @Matt Bernius:
    What other ways?

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21. 

    de stijl

    August 17, 2022 at 11:30 pm

    @dazedandconfused:

    I’m totally going to steal “vaguarities”. Nice!

    In my head it is pronounced veyg-you-air-eh-tees. Nice neologism.
22. 

    Andy

    August 17, 2022 at 11:44 pm

    Hey Matt,

    Again, I think this is a great post.

    And let me just lay out a few things to start with:

    First, I don’t believe for a second Trump’s claim that he actually gave the blanket declassification order described. And the reason is that Trump wouldn’t need such an order while he was President because he wouldn’t need to declassify anything to take classified information with him. The bigger point, which I’ll lay out below, is that the rules regarding classification do not apply to the President, they exist to serve the President’s interests and authority.

    There are actually a lot of smarter excuses Solomon and Trump supporters could make that would somewhat better pass the smell test, but they aren’t too bright.

    Anyway, I agree that logic and bureaucratic efficiency would seem to require that a President communicate and work through the bureaucracy and processes that exist. They do, after all, exist by Presidential authority and are intended to operationalize and administer the President’s purview over the classification system.

    The system as it exists is not flexible, is definitely designed to work in a certain way, and is set up to assume that a President will utilize the bureaucracy as it was designed. And therefore, the system needs and expects a President to exercise his/her authority through the existing regulatory processes. Without that, the system doesn’t function properly. Classification and declassification are probably the clearest examples of this. The President’s authority can’t be operationalized and administered if the President doesn’t tell it what to classify or declassify.

    The problem, of course, is that Trump was not a normal President (understatement of the year). The system cannot cope with a President like Trump, who much prefers to exercise his authority on his own terms regardless of what the bureaucracy wants or is designed to do. He expects people and processes to mold to his ever-changing desires and whims and serve his personal interests. This is, IMO, the fundamental flaw that makes him a terrible President.

    So, with that preamble, the fundamental question is whether a President is required to follow those bureaucratic processes or not. I argue that a President doesn’t have to follow them, and there are examples where every President (not just Trump) doesn’t follow the rules of the classification bureaucracy. And this is because the President stands above the bureaucracy as the source of its authority over most matters of classified information.

    Let’s give an example. Trump decided to Tweet a classified satellite image of Iran. Did he follow the bureaucratic procedures? No. Does that mean he did something illegal? No.

    Presidents can grant access to classified information to anyone they wish, including foreigners, without going through any process. A President can reveal any information he/she wants (excepting the niche areas discussed in James’ post) to anyone he/she wants for any reason he/she wants, and a President doesn’t have to inform the bureaucracy (although it would be stupid not too). Presidents routinely reveal classified information for foreign leaders that are hidden from Congress and the American people. And they can do that without having to go through the foreign disclosure procedures that people like me had to do.

    So the fundamental question is: Why is declassification any different? People keep insisting that a President must give an order to declassify or must follow declassification procedures, but where is this requirement written? Why is the President required to follow procedures for declassification but isn’t required to follow procedures for any of the things I mentioned above (and the many other examples one might cite)? AFAIK there is no law and no court precedent, so where is this requirement written that is binding on the President?

    I’ve yet to see an answer to any of those questions. Instead, the arguments fall back on the idea that the bureaucracy must have the proper and expected inputs, or it doesn’t work. And from a practical standpoint, that is completely correct! But from a legal standpoint?

    So I can understand why so many insist that the President must follow procedure – because not following procedure doesn’t make any sense, and it also creates a regulatory paradox in which the bureaucracy will still consider information classified while the president and perhaps some advisors don’t. The question then becomes how that paradox is reconciled.

    Let’s take a slightly different example that doesn’t involve Trump. Suppose a President orders the declassification of something, but that order gets lost somewhere along the way and isn’t operationalized by the bureaucracy. In that case, is the information declassified or not? Should someone who possesses that information to be prosecuted or not? Is a prosecutor going to pursue charges, and is a jury going to convict on a beyond reasonable doubt basis? I don’t know, but I don’t think it’s a slam dunk either way.

    As you note in your post, the courts have not adjudicated this. And it’s certainly true the courts could determine that President’s authority in this area is indeed bound to bureaucratic expectations and procedures, and they could determine that the President can’t create a bureaucracy and then ignore it, but who knows? IANAL or legal expert, and I have no idea what would happen if this were ever adjudicated – but neither do those who insist strongly that the President is bound to procedure.

    My argument here isn’t intended as a slam-dunk case because there is a lot of uncertainty. but that uncertainty works both ways. In attempting to convict Trump for mishandling classified information, the prosecution would have to prove the case and then defend a conviction through multiple appeals. As much as I dislike Trump, I’m skeptical that he would ultimately lose.

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23. 

    Andy

    August 17, 2022 at 11:46 pm

    However, I’m not sure, were that to happen and Trump’s undocumented “blanket order” prevailed, if that would end up being a win for the former President. The reason for this is that Presidential (de)classification power is tied to the office and not the individual. That means that Trump’s power to declassify was lost the moment that Joe Biden assumed the presidency via oath of office. And if it stands that a “blanket order” is enough to declassify, it would imply that the inverse is true: a blanket order is enough to classify information as well. That means that Biden could claim that he put a standing “blanket order” in place to reclassify all information Trump declassified pending review.

    That is exactly the case in my view. In fact, reclassifying formerly declassified information has happened in the past, futile as it may seem.

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24. 

    de stijl

    August 18, 2022 at 12:06 am

    @Jen:

    When John Bolton is the sanest, most rational person in the room arguing for caution, you know it is a big problem.

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25. 

    Andy

    August 18, 2022 at 12:21 am

    Matt,

    I think this is a pretty fair treatment of the issue including historical cases.

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26. 

    drj

    August 18, 2022 at 4:35 am

    @Andy:

    I argue that a President doesn’t have to follow them

    To which the obvious reply (which is already in the OP!): If Trump can magically declassify information, Biden can magically reclassify said information. Trump refused to properly handle and return this reclassified information and is therefore guilty of a crime.

    @Andy:

    I think this is a pretty fair treatment of the issue including historical cases.

    First paragraph (emphasis mine):

    Former President Donald Trump claims to have verbally declassified the sensitive records the FBI seized from his Mar-a-Lago compound. It’s not as unprecedented or outlandish an argument as widely believed — if he can prove it happened.

    Also:

    People keep insisting that a President must give an order to declassify or must follow declassification procedures, but where is this requirement written?

    Executive Order 13526. Which hasn’t been revoked.

    Unless, of course, you would like to argue that presidents can legally undo executive orders in their mind. (To which the reply would be that subsequent presidents can reinstitute those orders in their minds, too.)

    Two things:

    1) You are arguing that we are, in fact, living in a completely lawless society in which no one – due to the broad powers of the presidency – can know which behavior is legal or illegal. This is totally bonkers.

    2) Your entire argument was already pre-empted in the OP (and rests on failing to understand that if one president can legally ignore administrative procedures, the next one can, too).

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27. 

    Jen

    August 18, 2022 at 7:45 am

    @Andy:

    Why is declassification any different?

    Because declassification isn’t just a word, or a feeling, or a magical quality. It has a real-world meaning, and things that are declassified are subject to FOIA requests. If there’s no administrative and bureaucratic process to follow, Trump’s argument that he declassified everything that he took with him means that all of that information is now part of the public realm. Even a basic dictionary definition of the word ‘declassification’ includes phrases like “the action of saying officially that information is no longer secret” or “to officially declare that information no longer needs to be secret.”

    Declassification is by definition a bureaucratic process. Revealing, or talking about classified information doesn’t declassify it.

    Why is the President required to follow procedures for declassification but isn’t required to follow procedures for any of the things I mentioned above (and the many other examples one might cite)?

    Because people aren’t mind-readers. How is anyone to know what Trump declassified if Trump doesn’t subject what he has said he declassified to the declassification process? Is everything he touched in a Schrodinger’s box of state secrets, both classified and declassified at the same time?

    You seem to be making the argument that it is impossible for the President (any president) to mishandle classified information. Is that really what you mean to argue? That Trump could walk into a McDonald’s with a stack of information labeled top secret, order his hamberder, leaving the documents behind, and then upon discovery say “it’s okay, I declassified it on my way out of the White House” and that’s all okay? Or that he could hand over a list of agents operating under non-official cover to Putin and that’s all good?

    I’m really trying to understand what you believe the boundaries are, because in reading your responses you are making some very aggressive claims about a single individual’s treatment of sensitive information.

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28. 

    mattbernius

    August 18, 2022 at 9:34 am

    @dazedandconfused:

    What other ways?

    Great question and one I wanted to do some research on before answering. I checked with my live-in federal law expert and she confirmed that there are other procedures, BUT they were either exhausted (i.e. subpoena), arcane and difficult to enforce, or might not apply in this case. So a warrant would be the easiest and most expedient way to recover the documents. So, I rescind my previous comment.

    @Andy:
    Thanks as always for the thoughtful reply and for walking us through your thinking on this. Also thanks for the link, I look forward to reading through it.

    I actually think we’re both closer in view than it might appear. I totally agree that bureaucratic frameworks are definitely not set up for someone like Trump.

    And I think you are getting to the heart of the matter with this hypothetical:

    Suppose a President orders the declassification of something, but that order gets lost somewhere along the way and isn’t operationalized by the bureaucracy. In that case, is the information declassified or not? Should someone who possesses that information to be prosecuted or not? Is a prosecutor going to pursue charges, and is a jury going to convict on a beyond reasonable doubt basis? I don’t know, but I don’t think it’s a slam dunk either way.

    This is essentially my view of what we’re discussing now (except rather than being “lost” the order was never authoritatively passed to the bureaucracy in order to implement). You’re right that there hasn’t been a supreme court ruling on this. However, I’d argue that the 2nd Circuit ruling in the New York Times case can be interpreted as saying that said information was never declassified because there was no bureaucratic follow-through.

    In response to the Iran Tweet, my assumption was there was some form of follow-through after the President chose to share that picture.

    Ultimately, this will all remain conjecture and opinion until someone is charged with a crime. Which makes it also perfect for these sorts of back and forth in comments.

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29. 

    mattbernius

    August 18, 2022 at 9:45 am

    @Andy:
    I quickly scanned the article and it was helpful. I am a bit frustrated that I don’t feel like it ever unpacked its subhead:

    The Scooter Libby case under George W. Bush showed that presidents can declassify materials without a clear paper trail.

    I was hoping for (and if I missed it please let me know) an unpacking of the underlying theory of why. As far as I saw, the basis for this claim was prosecutorial discretion in that case –the fact that Special Counsel Patrick Fitzgerald chose not to charge under those statutes.

    It’s evidence that’s worth considering. But without pointing to the specifics of the law (or legal interpretations from the court) my sense is this is still a bit of a gray area. Additionally, as the article points out, there is a difference between a decision made by a sitting President about classification and a former President, now a private citizen, holding onto documents whose classified status is unknown and potentially unrecorded.

    I also think we’re at a point where everyone has established their current positions and continuing this discussion with the current facts we have probably isn’t going to be productive or satisfying for any side.

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30. 

    mattbernius

    August 18, 2022 at 10:05 am

    @Andy:
    I passed over your final point that I 100% agree on:

    My argument here isn’t intended as a slam-dunk case because there is a lot of uncertainty. but that uncertainty works both ways. In attempting to convict Trump for mishandling classified information, the prosecution would have to prove the case and then defend a conviction through multiple appeals. As much as I dislike Trump, I’m skeptical that he would ultimately lose.

    This is a really important point when it comes to charging–especially at the Federal level where prosecutors tend to be more cautious than their peers in State systems. Given that this is still an untested space, that means a lot.

    There’s also a second reason for being cautious–generally speaking, branches of Government are cautious about giving up power (and that includes flexibility). So to some degree, having this space be legally tested and defined could ultimately remove some power from the Executive branch (not a bad thing in my mind, but others definitely disagree). So in addition the challenge of proving and defending the case might also not be worth it from a power perspective as well.

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31. 

    Andy

    August 18, 2022 at 6:52 pm

    @drj:

    Executive Order 13526. Which hasn’t been revoked.

    I’ve very familiar with the EO, it doesn’t say what you claim it says.

    1) You are arguing that we are, in fact, living in a completely lawless society in which no one – due to the broad powers of the presidency – can know which behavior is legal or illegal. This is totally bonkers.

    2) Your entire argument was already pre-empted in the OP (and rests on failing to understand that if one president can legally ignore administrative procedures, the next one can, too).

    1) I’m not arguing that we’re living in a lawless society. The fact of the matter is that when it comes to matters of classification in most areas of the federal government, the President has sole authority. If you want to argue that the President is bound by the rules of 13526, then why has every president not followed those rules on multiple occasions? The idea that a President is required to follow some of the procedures in his EO, but not others needs some kind of logical argument.

    2) Yes, perhaps you didn’t read my whole comment (It was long, sorry), but the next President indeed gets the same authority. If Trump declassified something, Biden could reclassify it.

    @Jen:

    Declassification is by definition a bureaucratic process. Revealing, or talking about classified information doesn’t declassify it.

    As I noted in my comment, that is indeed the way it is supposed to work as a matter of logic and bureaucratic efficiency.

    It’s quite another thing to say that the logical operation is an actual limitation on Presidential authority in a way that would allow him to be criminally prosecuted after leaving the office for not properly declassifying something the way the system expects.
32. 

    Andy

    August 18, 2022 at 7:13 pm

    @mattbernius:

    I have not had time to dive deeply into the background of this (and doubt I will), but the gist is that the prosecutor decided not to try to prosecute Libby for leaking classified information under any of the relevant laws. We don’t know why he didn’t, but a potential reason is that it wasn’t clear or couldn’t be proven whether or not Libby’s leak was authorized or not. And if Libby’s leak was authorized, then he wouldn’t be guilty. Libby claims the leak was authorized, I don’t think Bush or Cheney ever confirmed or denied it, but there was no order.

    So there are some similarities there.

    I also think we’re at a point where everyone has established their current positions and continuing this discussion with the current facts we have probably isn’t going to be productive or satisfying for any side.

    Yeah, I agree. I think we really need more info at this point.

    @mattbernius:

    So to some degree, having this space be legally tested and defined could ultimately remove some power from the Executive branch (not a bad thing in my mind, but others definitely disagree). So in addition the challenge of proving and defending the case might also not be worth it from a power perspective as well.

    Yep, I agree with that. I would just add that all things being equal, I much prefer precedents in such areas to be challenged and set by Congress rather than the judiciary all by itself.

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33. 

    mattbernius

    August 18, 2022 at 9:11 pm

    @Andy:
    Agreed on preferring that Congress did its job.

    Also it sounds like we will have more facts next Thursday as the Southern District of Florida Judge looks like he will release a redacted version of the affadavit.

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